Citation Nr: 22014602 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 20-11 162 DATE: March 14, 2022 ORDER A 70 percent rating, but no higher, prior to October 23, 2019, for posttraumatic stress disorder (PTSD) is granted. A rating in excess of 70 percent on and after October 23, 2019, for PTSD is denied. FINDING OF FACT Prior to and after October 23, 2019, the service connected PTSD has been shown to be productive of no more than occupational and social impairment with deficiencies in most areas due to a depressed mood; a flattened affect; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; "mild memory loss, such as forgetting names, directions or recent events;" "disturbances of motivation and mood;" "difficulty in establishing and maintaining effective work and social relationships;" "difficulty in adapting to stressful circumstances, including work or a work like setting;" and "obsessional rituals which interfere with routine activities;" and no suicidal or homicidal ideation. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating for PTSD prior to October 23, 2019, have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for a rating in excess of 70 percent for PTSD on and after October 23, 2019, have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service from July 1964 to July 1966. In January 2022, the Veteran appeared at a virtual hearing before the undersigned Veterans' Law Judge. The hearing transcript is of record. Increased Rating for PTSD Disability ratings are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. A 30 percent rating is warranted for PTSD which is productive of occupational and social impairment due to an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although the individual is generally functioning satisfactorily with routine behavior and normal self care and conversation) due to symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material or forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and an inability to establish and maintain effective relationships. A 100 percent rating requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. A veteran may qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Prior to October 23, 2019 The Veteran contends that a rating in excess of 30 percent is warranted for the PTSD prior to October 23, 2019. A February 2018 Department of Veterans Affairs (VA) mental health clinic treatment record states that the Veteran complained of recurrent nightmares and intrusive memories. The VA psychiatrist observed that the Veteran was alert, fully oriented, and appropriately dressed. On mental status examination, the Veteran exhibited an anxious and irritable mood and affect; organized and linear thought processes; productive and fluent speech; and no hallucinations, delusions, and suicidal and homicidal ideations. The report of a March 2018 VA psychiatric examination states that the Veteran complained of a depressed mood, anxiety, chronic sleep impairment and disturbances of motivation and mood. The Veteran was observed to be alert and oriented times three. On examination, the Veteran exhibited a mildly depressed mood; an affect appropriate to mood; normal thought processes and content; and no hallucinations, delusions, and suicidal or homicidal ideation. The examiner concluded that the service connected psychiatric disability was productive of occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. A September 2019 VA treatment record from the Veteran's treating psychiatrist notes that he had severe progressive PTSD symptoms including frequent nightmares, intrusive painful memories, hypervigilance, sleep dysregulation, issues with emotional regulation, anxiety, decreased frustration tolerance and increased irritability. A July 2019 VA mental health clinic treatment record states that the Veteran complained of worsening intrusive memories, irritability, insomnia, hypervigilance, and an intolerance to crowds. He reported low motivation and difficulty being around others, especially coworkers, with increased agitation and occasional verbal aggression. The Veteran was observed to be alert; oriented times three; and appropriately dressed. On mental status examination, the Veteran exhibited an anxious mood; normal speech; and organized thought processes; and no suicidal and homicidal ideations, hallucinations, and delusions. At the January 2022 Board hearing, the Veteran testified that the PTSD symptoms were worse on the weekends and other times when he was not working. He stated that he treated his symptoms with the use of alcohol. Prior to October 23, 2019, the service connected psychiatric disability was shown to be productive of no more than occupational and social impairment with deficiencies in most areas due to anxiety, depression, chronic sleep impairment, irritability, panic attacks, decreased mood and motivation, intrusive thoughts and memories, hypervigilance, flattened affect, anger, difficulty with emotion regulation, mild memory loss, avoidance of crowds, difficulty establishing and maintaining work and social relationships and adapting to stressful circumstances, and the use of alcohol to self medicate. Such symptoms most closely approximate the criteria for a 70 percent rating under Diagnostic Code 9411. The Veteran does not assert, and the record does not establish, that the service connected psychiatric disability was productive of total occupational and social impairment prior to October 23, 2019. There is no objective or subjective evidence of total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. Therefore, the Board finds that a 70 percent rating, and no higher, is warranted for PTSD prior to October 23, 2019. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. On and After October 23, 2019 The report of an October 23, 2019, psychiatric examination conducted for VA states that the Veteran exhibited a depressed mood; a flattened affect; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; "mild memory loss, such as forgetting names, directions or recent events;" "disturbances of motivation and mood;" "difficulty in establishing and maintaining effective work and social relationships;" "difficulty in adapting to stressful circumstances, including work or a work like setting;" and "obsessional rituals which interfere with routine activities." The report of an April 2020 psychiatric examination conducted for VA states that the Veteran reported that he had resigned for his worked as a teacher and went on medical leave in January 2020. The Veteran was observed to be alert, oriented, and neatly groomed. On mental status examination, the Veteran exhibited a depressed mood, a flattened affect, anxiety, suspiciousness, chronic sleep impairment, fair insight and judgment, normal speech, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, an inability to establish and maintain effective relationship, and no suicidal or homicidal ideation. The examiner commented that the service connected PTSD made functioning in an occupational setting difficult and would severely and negatively impact any occupational activities. At the January 2022 Board hearing, the Veteran testified that the service connected psychiatric disability had improved since the last psychiatric disability. On and after October 23, 2019, the service connected psychiatric disability has been shown to be productive of no more than occupational and social impairment with deficiencies in most areas due to a depressed mood; a flattened affect; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; "mild memory loss, such as forgetting names, directions or recent events;" "disturbances of motivation and mood;" "difficulty in establishing and maintaining effective work and social relationships;" "difficulty in adapting to stressful circumstances, including work or a work like setting;" and "obsessional rituals which interfere with routine activities;" and no suicidal or homicidal ideation. Such symptoms most closely approximate the criteria for a 70 percent rating under Diagnostic Code 9411. The Veteran does not assert, and the record does not establish, that the service connected psychiatric disability was productive of total occupational and social impairment prior to October 23, 2019. Indeed, he testified on appeal that the service connected psychiatric disability had improved since the most recent VA psychiatric examination. There is no objective or subjective evidence of total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. Therefore, the Board concludes that a rating in excess of 70 percent on and after October 23, 2019, for PTSD is not warranted. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.R. Kardian, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.